Infamous Pinkerton Detectives Claim Red Dead Redemption's Use Of Historically Accurate Pinkertons Is Trademark Infringement
from the seeing-red dept
Take 2 Interactive is no stranger to fighting bogus complaints about "infringement" concerning how it represents characters in its various games. Most of these fights have been over its flagship franchise, the Grand Theft Auto series, where the developer often enjoys poking fun at pop culture and society through settings and characters that are an amalgam of several stereotyped individuals. This has resulted in entitled celebrities and property owners attempting to sue over trademark and publicity rights in the past, with Take 2 typically coming out victorious by pointing out that its work is that of parody and covered by fair use.
This is now happening with a different game but the basic story remains the same. In this case we have the added insanity of a rather infamous company trying to profit off of its infamous history. Pinkerton Consulting & Investigations sent a cease and desist notice to Take 2 after Red Dead Redemption 2 was released due to the game including characters who were a part of the company during ye olde olden times. In response, Take 2 filed suit.
Pinkerton sent Take-Two Interactive a cease-and-desist letter over the characters of Andrew Milton and Edgar Ross, a pair of Pinkerton agents and major antagonists in the game. Now, Take-Two is suing to have the characters declared fair use, arguing that they’re part of Red Dead Redemption 2’s detailed historical setting.
Pinkerton Consulting & Investigations (now a subsidiary of security firm Securitas AB) delivered its cease-and-desist order in December, roughly two months after Red Dead Redemption 2’s release. It commended game development studio Rockstar’s “clear affection” for Pinkerton, but claimed it was trading on the “goodwill” associated with the company’s trademarks, creating a false impression that the game was made by or connected with Pinkerton. The order demands that Take-Two pay either a lump sum or ongoing royalties. But Take-Two contends that Red Dead Redemption 2 — which the lawsuit describes as a “gripping Wild West adventure” and “essentially an interactive film” — is protected by the First Amendment.
Okay, so a lot to get into here. First and foremost, including Pinkerton in a story about the old west absolutely is an obvious aim at being historically accurate. I didn't realize it until reading this story, but the Pinkerton operation around today is the same Pinkerton organization that has a sordid history working with both government and industry specifically to infiltrate, investigate, and ultimately stop the spread of labor unions, while encouraging strikebreaking. The infamous Pinkerton agency goes all the way back to the 1800s and was somewhat notorious for its tactics. The company also was very much involved in investigating and tracking down notorious outlaws such as Jesse James, Butch Cassidy, and the Sundance Kid. All of this, of course, makes their appearance in an old west outlaw game perfectly reasonable fodder.
Take 2 notes all of this in its declaratory judgment suit, along with mentioning all of the other cultural media that includes references to Pinkerton in stories about the old west.
Take-Two notes that the Pinkerton National Detective Agency is referenced in plenty of other Western fiction, and that the agency played a major role in real 19th- and early 20th-century American history. (It was not, however, the inspiration for the Weezer album Pinkerton.) Among other places, Pinkerton agents appear in the 2000s-era TV series Deadwood; the 1980 film The Long Riders; and the 2010 game BioShock Infinite, where the protagonist is a former Pinkerton agent.
Yet, when it comes to the wildly successful game Take 2 released, Pinkerton suddenly wants to lean on trademark law as a way to profit over a historical reality. This is absurd on many levels, including that the use by Take 2 -- much like with its GTA series -- is obviously fair use. On top of that, Pinkerton's claim in its C&D that the public is going to somehow be confused into thinking that Red Dead is the product of, affiliated with, or approved by Pinkerton is laughable at best. I would posit that most people playing the game likely won't know that Pinkerton is a real company, whereas those that do will see it as the inclusion of historical characters that are prevalent throughout the game.
In response to the lawsuit, the Pinkerton folks claim that part of their complaint is that this is a historically inaccurate picture of the Pinkertons, and that it's harming their good will. Given the existing reputation of the Pinkertons from back in the day, it's difficult to see how there is much good will to harm here in the first place, and litigating the reputation of the Pinkertons from the 1800s in the old west doesn't seem like a productive use of anyone's time.
We'll see how the court decides this, but it's quite difficult to imagine works of art having to license history in the way Pinkerton has suggested Take 2 should.
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Filed Under: fair use, history, licensing, nominative fair use, pinkertons, red dead redemption 2, trademark
Companies: pinkerton, pinkerton consulting and investigations, rockstar games, securitas ab, take 2 interactive
Reader Comments
The First Word
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Confused?
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Re: Confused?
Try asking around at WalMart next time.
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And now they do. Seems like an effective PR move. File one lawsuit and people all over world are talking about you.
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What if it's reverse Stresand?
Perhaps Pinkerton's wants the publicity?
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the same but different
• https://en.wikipedia.org/wiki/Feud_(TV_series)#Controversy
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Busting Commie Unions Is Doing God’s Work
But when simply reporting the facts makes you look bad, that’s just more proof that REALITY HAS A LIBERAL BIAS!!!!1111
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Doesn't the standard "detective" trope say that detectives are supposed to be good at understanding how things do or don't connect? Tells you how good these Pinkertons must be at their job.
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Re:
I see what you did there o_o
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Education
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Re:
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I didn't know that the company still existed, apparently largely as a brand name. I would have thought that name would have been abandoned as irretrievably tainted.
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YouTube recently banned a user for posting video clips of Red Dead Redemption, but this brings up another question - can a 4th-party trademark/copyright claim result in an automatic takedown, as in Pinkerton claiming intellectual peoperty rights on all YouTube videos showing Pinkerton in Red Dead Redemption, and can users who post such clips of video games have any legal liability?
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Re:
https://en.wikipedia.org/wiki/Young_Guns_II
Red Dead Redemption 2 - $725 million in sales in the opening weekend
https://en.wikipedia.org/wiki/Red_Dead_Redemption_2#Sales
It's not hard to work out why they're suddenly taking notice.
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Re: the same but different
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Re:
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Re: Re: the same but different
There's not really any comparison beyond the superficial.
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Re:
Well, the DMCA doesn’t discriminate about this sort of thing, so…yes.
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"Jinkies, you're still alive?"
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Re: Re:
That and yet more lawyers making work for themselves. They don't have any real cases to work on, so that have to find something to keep those billable hours padded.
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Re: Re:
Then there is the problem of...
plus Hollywood accounting where they have no profit...ever.
VS
plus unlikely Hollywood accounting where there might actually be some profit.
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Re: What if it's reverse Stresand?
Then it is almost certainly better to hire a publicist rather than a lawyer.
If they wanted publicity, they could slap, "As seen in smash hit Red Red Redemption!" on their adverts and give the Take Two lawyers fits instead! :)
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--and--
"the Pinkerton folks claim that part of their complaint is that this is a historically inaccurate picture of the Pinkertons, and that it's harming their good will."
So it's ok to harm their good will as long as they get paid...
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Goodwill
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Re: Re:
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So... nothing has really changed since then?
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I was a Pinkerton in 1988...
...and was getting offers to bust strikes for pay.
So Pinkerton's sordid history (even though at that time it was recently CPP/Pinkerton having recently been bought out by CPP (California Patrol and Protection? I forget.) may still be pretty recent.
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Re: I was a Pinkerton in 1988...
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Appearances in media
Oooh! Relevant!
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Nor did I nail the door shut to a womens hostel and set the building alight, shooting anyone that tried to escape through a window.
So RDR2 != Pinkerton.
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We Object...
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Re: Re:
Heck, the DMCA is so indiscriminate that I could send in a DMCA notice to YouTube and get them automatically taken down, and I never even heard of the Pinkertons before and have passing familiarity with RDR2 at best.
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Re:
Then why does Pinkerton care about if or how they're depicted in a game that is set over a hundred years ago?
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Re: Re:
Because Rockstar have a lot of money,
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Re:
I am so very warned.
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Re: Appearances in media
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